LANSING – Michigan would pay nothing under the terms of the Crossing Agreement with Canada to build the new bridge between Detroit and Windsor, Ontario, according to an analysis by the nonpartisan House Fiscal Agency.
Other analyses of the proposal have been done, but usually they have been funded by organizations with a vested interested in whether the bridge is built. The crossing agreement, signed by Governor Rick Snyder and the Canadian government in June, is filled with statements that Michigan is not financially responsible for the costs, which would be borne by Canada.
But the Moroun family – owners of the rival Ambassador Bridge, fierce opponents of a new crossing and the force behind Proposal 12-6 to require an affirmative statewide vote for any new international border crossing – has insisted the state will bear a financial burden if tolls fail to match the cost of repaying the debt sold to build the bridge. Canadian and Michigan officials have said any such shortfalls would not require Michigan to pay.
“The House Fiscal Agency is unable to identify any direct fiscal impact on state government if the NITC project proceeds to construction and operation under the terms of the June 15, 2012 Crossing Agreement,” the analysis reads, referring to the project by its name on the Michigan side, the New International Trade Crossing. “The state of Michigan would have no financial responsibility under terms of that agreement.”
The HFA analysis is of Proposal 6, and it points to several potential problems with the constitutional amendment if voters adopt it.
One of the most significant is that the proposal does not specify when its requirements would apply in a bridge project development process, the analysis says. Such projects are a multiphase, multiyear process that follows federally required planning requirements.
It took several years of study before those involved in what many still call the Detroit River International Crossing selected a site where the bridge would land on the Michigan and Canadian sides.
“It would be impractical to require a vote of the people on a new international bridge or tunnel project before the selection of a preferred alternative, i.e. before it is even known in which municipality a proposed project would be situated,” the analysis says. “In the alternative, it would be unreasonable to go through the rigorous and costly planning and environmental clearance process ‘on spec’ and to then wait for a privately organized initiative process to put the project on statewide and municipal ballots and hope for an affirmative vote. It is unlikely that the federal government would participate in environmental clearance or project development costs if Ballot Proposal 6 were approved and it is unlikely the state would find a Canadian partner in such a process.”
The analysis also wades into the ongoing controversy about the definition of “new international bridges or tunnels for motor vehicles.” The definition of that term in the proposal is “any bridge or tunnel which is not open to the public and serving traffic as of January 1, 2012.” Critics of the proposal, including Governor Rick Snyder, have said this definition would mean any new state bridge or tunnel, not just international ones, would be subject to the voting requirement. The Morouns have countered that such an argument is absurd because the word international shows up repeatedly in the proposal.
“Sometimes the meaning of a defined term can have significant policy implications. In the case of the proposed Article III, Section 6a amendment, the definition appears to create ambiguity,” the analysis says. “While interpreting the language of proposed section 6a to mean that any new state-owned bridge would require a statewide and municipal vote of the people might seem unreasonable or even absurd, it is not outside a possible judicial reading.”
The use of a date is designed to require a statewide vote on the NITC even though the Crossing Agreement was signed June 15. The analysis suggests such a retroactive requirement “would appear to conflict with Article I, Section 10 of the 1963 Michigan Constitution which prohibits any ex post facto law or law impairing the obligation of contract.”
Another unknown is how the local government vote requirement would work. Besides the statewide vote, the municipality or municipalities where the bridge facilities would be located would have to give approval. The HFA analysis says it is unclear what mechanism would be used to place the question on a local ballot. The proposal refers to Article II, Section 9 of the Constitution, which addresses the process for voter initiated legislation. That can work for the statewide vote.
But of the local vote, the analysis asks, “Since Article II, Section 9 has no applicability to municipalities, do the Ballot Proposal 6 provisions establish a requirement impossible to fulfill.”
Proposal 6 itself would not have direct fiscal impact on state government unless it prevented the state from proceeding on the NITC, the analysis says. The state might have to repay the federal government as much as $33 million. From March 2002 through March 2011, the total cost of NITC environmental clearance activities was about $42 million, of which 80 percent came from federal highway funds and the rest from the State Trunkline Fund.
Additionally, if the state cannot proceed with the NITC as a result of Proposal 6, it would deprive the state of $550 million in Canadian funds the state could count toward its federal match for road funding aid, the analysis says.
Tom Shields, spokesperson for the supporters of the bridge and opponents of Proposal 6, praised the study.
“It’s very beneficial to have these independent third parties come in and say exactly what the governor and supporters of the NITC project have been saying from day one, that there’s absolutely no liability to the state of Michigan for the cost of constructing this bridge,” he said.
And he concurred with its analysis that the proposal, if adopted, would effectively mean the state could never build a new international border crossing going forward.
“Practically, it would kill any project because you have to spend millions going through the environmental impact,” he said. “If a government’s not going to do that, who would do that? Would you enter this whole process and spend those kind of dollars not knowing when it’s all said and done whether or not you’re going to build it?”
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